André Schutten: Freedom of expression at stake in the Whatcott case

What Whatcott means for freedom of expression

Tomorrow, the Supreme Court of Canada will release its long-awaited decision in the case of Saskatchewan Human Rights Commission vs. William Whatcott. After more than 16 months of deliberation, the justices will render a judgment that defines the range of free expression in this country.

At the centre of this case is Bill Whatcott, a controversial Saskatchewan-based social conservative who says exactly what is on his mind. In 2001 and 2002, Whatcott distributed homemade flyers throughout Canada. In one, he challenged a proposal to teach students in Grades 3 and 4 about homosexuality, stating: “Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong.” In another flyer, Whatcott ranted against the participation of the Toronto school board in a gay pride parade: “If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”

As the Saskatchewan Court of Appeal has affirmed, “the language he uses in his flyers is blunt and forthright … Whatcott does not use the language of polite or informed social discourse. Many people would find some of the words he uses in his flyers to be crude, offensive and pejorative.”

When Whatcott distributed hundreds of such flyers in Saskatoon and Regina, many people were upset. Four of them filed human rights complaints.

Predictably, Saskatchewan’s Human Rights Commission accepted the complaints, and, just as predictably, a Human Rights Tribunal ruled against Whatcott. He was ordered to pay $17,500 in damages to the four complainants for loss of “dignity and self respect,” and “hurt feelings.”

The Saskatchewan Court of Appeal eventually overturned the ruling of the Human Rights Tribunal (which had been upheld by the Court of Queen’s Bench). But the Commission, upset by the limits that had been placed on its censorship power, invested thousands of tax dollars by appealing the ruling to the Supreme Court of Canada.

On Oct. 12, 2011 the Supreme Court heard oral arguments from Whatcott’s lawyers, from lawyers for the Saskatchewan Human Rights Commission, and from the majority of the 25 interveners, seven of which were government agencies. Of those seven, all argued in favour of censorship.

Tomorrow’s decision, should it be rendered in Whatcott’s favour, could serve to rein in the power of human rights commissions and tribunals to censor unpopular opinions. The Whatcott case would thereby serve to overturn the Supreme Court’s Taylor decision of 1990, according to which Canadians must effectively endure censorship in the name of human rights.

Whatcott’s flyers amounted to his contribution to an ongoing public policy discussion in Saskatchewan on what should be taught in public elementary schools and teachers colleges. He spoke as he knew how — which is to say, as a religiously motivated social conservative. He should not be barred from public debate, whether under the rubric of “human rights” or otherwise, simply because he fails to follow the rules of “polite or informed social discourse.”

Whatcott may not represent my views or yours. But he does represent each Canadian in that he, like all of us, has a right to engage in public policy debate, as he best knows how, in his own way.

Regardless of which way tomorrow’s decision goes, we the people have work to do. If the decision accords with freedom of expression, we must work to ensure our provincial governments get in line with this ruling by amending provincial human rights legislation and removing censorship provisions accordingly.

And if the decision goes the other way, the campaign for free speech must continue, though it will be more difficult. Freedom is enjoyed only when the people guard it with vigilance. Let’s hope the Supreme Court makes it an easier task.

National Post

André Schutten is a lawyer for the Association for Reformed Political Action (ARPA) Canada. ARPA applied to intervene in the Whatcott case. More information on ARPA’s campaign to reform and remove the human rights commissions can be found at HumanRightsCommissions.ca

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